First Amendment case may become proxy for abortion rights at Supreme Court

By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer

Updated 6:05 AM ET, Tue November 14, 2017

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Washington (CNN)In announcing plans to take up a challenge to California law that requires anti-abortion pregnancy centers to post information about low-cost abortion services, the Supreme Court will return to familiar yet rocky ground pitting speech rights against abortion rights. Such cases turning on the First Amendment sometimes become proxies for the larger, enduring fight over a woman's right to end a pregnancy.

The case centers on a 2015 California state law requiring pregnancy-related clinics, including those with religious convictions against abortion, to provide clients with information about publicly financed contraception, abortion and other family-planning services.

State officials said the notice law ensures that all California women, regardless of income, are aware they can obtain reproductive services. The challengers argue that it unconstitutionally forces centers that oppose abortions to post notices that encourage women to seek information on free or low-cost abortions.

The dispute recalls other speech-related clashes, over rules regarding physician counseling on abortion to regulation of health-clinic protesters. Such cases have at times come down to a single vote and mirrored justices' abortion views. For example, in 1991, the court, by a 5-4 vote with conservatives in the majority, ruled that Congress could prohibit government-funded clinics from counseling women on abortion. Separately, in 1993, it restricted federal judges' ability to prevent clinic blockades by anti-abortion demonstrators.

More recently, in 2014, when the court unanimously rejected a Massachusetts law that kept protesters away from clinics, justices nevertheless split 5-4 in their reasoning. The more conservative justices said that the majority's approach failed to sufficiently protect the protesters' First Amendment rights.

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The Supreme Court first declared a woman's right to end a pregnancy in the 1973 Roe v. Wade case. It reaffirmed that right in 1992 by a narrow 5-4 vote. Most recently In 2016, a five-justice majority struck down a restrictive Texas abortion law.

The new case also comes as the Trump administration has continued to satisfy its political base on broader dilemmas of reproductive rights and religion. Last month, after failing to stop a 17-year-old migrant from obtaining an abortion, Trump administration lawyers asked the Supreme Court to void the lower court decision that allowed it and to discipline the teenager's American Civil Liberties Union spell out lawyers, who, the administration said, acted to "thwart" Supreme Court review of the case.

In the California case, the National Institute of Family and Life Advocates and other religiously affiliated groups that provide ultrasounds and other medical services argue that the First Amendment protects the choice of "what to say" and "what not to say." They say the California law, which fines clinics that fail to provide the requisite notices, forces them "to communicate the government's message about state-funded abortions to everyone who walks in the door."

Lower court judges declined to block the law. The 9th US Circuit Court of Appeals sided with California officials about their interest in citizens' health, including access to abortion. The court said the legislature determined that thousands of pregnant women in the state were unaware of state-funded health assistance.

The 9th Circuit also made clear that the legislature had in mind the kinds of "crisis pregnancy centers" the challengers operate when it adopted the legislation, stating, "CPCs pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions." Still, the appeals court rejected the challengers' arguments that the law impermissibly targeted them based on their views against abortion.

The appeals court said that California law does not reveal a preference for any type of family-planning service; it only ensures that women know such services exist. The court differentiated the California law from one requiring physicians to perform an ultrasound, display it and describe the fetus to a woman. The 9th Circuit noted that the Richmond-based 4th Circuit appeals court had ruled such a law violated the First Amendment because its goal was to convince women seeking abortion to change their minds.

Lower courts are divided over the legal standard for assessing the constitutionality of state regulation of the medical profession and abortion. The case offers the justices a chance to clarify the standard for regulation of communications between professionals and clients.

Yet the abortion backdrop will likely make it one of the most closely watched disputes of an already major Supreme Court term. Resolution could hang on the vote of centrist conservative Justice Anthony Kennedy, who has been the decisive vote on abortion rights dilemmas for decades.

"Perhaps to belabor the obvious," the National Association of Evangelicals wrote in a "friend of the court" brief as it urged the justices to hear the appeal, "abortion remains one of the most contentious issues of our public life, implicating not just religious and ethical issues, but scientific and political ones."